Dismissed

National Insurance Co. Ltd., v. Katari Venkataiah and Another

Andhra Pradesh HC19 Oct 2022MACMA/281/2013

Case brief

AI extract

What is this about?

In an appeal under Section 173 of the MV Act, 1988, the High Court upheld the Motor Accidents Claims Tribunal's award of compensation to a cleaner. Ruling that a goods vehicle cleaner is covered under the mandatory B-package policy despite no extra premium, the court dismissed the insurer's appeal alleging no liability existed.

What did the court decide?

Appeal dismissed; order of the Tribunal confirming Rs.3,35,000 compensation to the cleaner is upheld.

National Insurance Co. Ltd., Vs Katari Venkataiah and Another — Insurance | Andhra Pradesh HC (2022)

¶1

S..

¶2

¶3

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

¶4

WEDNESDAY ,THE NINETEENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY TWO t

¶5

THE HONOURABLE SRI JUSTICE T MALLIKARJUi^>fti^^^.

¶6

MACMA NO: 281 OF 2013

¶7

Appeal under Section 173 of M.V. Act, 1988 against the Order and decree made in M.V. O.P. No. 218 of 2008 Dated 22.12.2011 on the file of the Court of the Chairman Motor Accident Claims Tribunal cum VI Additional District Judge, Kadapa, YSR Kadapa District

¶8

Between:

¶9

National Insurance Co. LTD.,, Chennai, Rep. by its Local Divisional Manager, Divisional Office, Subash Road, near Sapthagiri Hotel, Anantpaur Town and District. ...APPELLANT /RESPONDENT No.2

¶10

AND

¶11

Katari Venkataiah, S/o Subbaiah Alias Buchi Reddy, Hindu, Lorry Ciearner R/o V.V. Kandriya Village and Post, Railway Kodur Mandal, YSR Kadapa District. ...RESPONDENT No.1 / CLAIM PETITIONER

¶12

N. Venkata Ramana, S/o Subbaiah Hindu, R/o Rachapalli Village, V.V. Kandriga Post, Railway Kodur Mandal, YSR Kadapa District. ...RESPONDENT No.2 / RESPONDENT No.1

¶13

Counsel for the Appellants : SRI. N RAMA KRISHNA Counsel for the Respondents: SRI V R REDDY KOVVURI The Court made the following:

¶14

HON’BLE SRI JUSTICE T.MALLIKARJUNA RAO

¶15

MACMA.No.281 OF 2013

¶16

JUDGMENT :

¶17

Aggrieved by the order dated 22.12.2011 in MVOP.No.218 of 2008 passed by the Chairman - Motor Accidents Claims Tribunal - Cum - Judge, Family Court - Cum - VI Additional District Judge - Kadapa, (for short ‘the Tribunal’), the respondent National Insurance Company Limited, Chennai, represented by its Local Divisional Manager preferred this appeal questioning the compensation amount awarded by the Tribunal.

¶18

For convenience's sake, hereinafter, the parties will be referred to as arrayed in MVOP.No.218 of 2008.

¶19

The claim made by the petitioner under Sec. 166 of the Motor Vehicles Act claiming compensation amount of Rs.5,25,000/- for the injuries received by him in a Motor Vehicle Accident that took place on 24.03.2005 at 08.30 PM near Obulavaripalli fields while the petitioner was loading the Papaya fruits and a lorry bearing NO.AP16TV5877 (hereinafter referred to as the offending vehicle) came rashly and negligently, belonged to the P* respondent and was insured with the 2’^^ respondent.

¶20

4.' The respondents filed separate written statements. In the written statement filed by the 1« respondent, it is contended that the 1®^ respondent insured the lorry with the 2*“* respondent, paid the premium to the cleaner and driver, and the third party policy was in force from 17.01.2005 to 16.01.2006.

¶21

¶22

MACMA.Wo.281 OF 2013

¶23

The 2nd respondent contended in a written statement that as per the policy's terms and conditions, the driver has to possess a valid driving license at the time of the accident. The loriy driver, did not possess a valid and effective driving license at the time of the accident. The respondent has not paid any additional premium for covering the workman; since no additional premium'is paid, there is no liability cast on the respondent. The pt respondent alone is liable to pay the compensation aniount.

¶24

Based on the pleadings, the Tribunal framed relevant issues. On behalf of petitioners, examinedPWs. 1 to 5, marked Exs.Al to A10, Ex.XI to X3 marked, on behalf of respondents, examined RWs.l and 2, Exs.Bl marked.

¶25

After considering the evidence on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the offending vehicle's driver. The Tribunal awarded a compensation amount of Rs.3,35,000/- with interest at 6% per annum against respondents 1 and 2.

¶26

Heard the arguments of learned counsel for the appellant and respondents and perused the record.

¶27

The learned counsel for the appellant contends that the learned Tribunal grossly erred in holding that the offending vehicle was covered under the policy in the absence of payment of an additional premium paid to cover such risk. The driver of the crime vehicle is not having a valid driving license. The observations of the loss of earning capacity of respondent No. 1 are perverse. The accident did not occur, but the driver had applied breaks, having watched live

¶28

¶29

MACMA.Mo.281 OF 2013

¶30

electrical wire hanging across the road in a low position.

¶31

Per contra, the learned counsel for the respondents supported the findings and observations of the learned Tribunal.

¶32

Now points for determination are whether the accident occurred due to rash and negligent driving of the offending vehicle by the driver and whether the quantum of the compensation amount awarded by the Tribunal is just and reasonable. Whether the Tribunal is justified in holding that the insurance company is liable to pay the compensation to the cleaner even without paying an extra premium to cover the risk.

¶33

12.To prove tfieir case, the petitioner examined PW.l, and he deposed that on 24.03.2005, he, in the capacity of cleaner and K.Subbaramayya as the driver took the lorry bearing NO.AP16TU5877. They left along with coolies to load Papaya fruits while returning to railway koduru, the driver of the lorry drove rashly and negligently between Obulavaripalli and Koduru Main road, and the driver suddenly applied breaks by observing the live electric wire across the road hanging at a low position. A careful reading of the cross-examination of PW.l shows that it elicited nothing to discredit his evidence regardirig the rash and negligent driving of the lony driver at the time of the accident. The petitioner ***** relied on an Ex.Al certified copy of FIR and an Ex.A3 certified copy of the charge sheet.

¶34

The driver of the offending vehicle is the best person to speak about the manner of an accident. The respondent has also not taken steps to prove the manner of the accident by summoning the driver and establishing that he did not drive the vehicle rashly and negligently at the time of the accident.

¶35

¶36

magma.Wo.281 of 2013

¶37

A reading of Ex.Al FIR coupled with an Ex.A3 certified copy of the charge sheet shows that the driver of the offending vehicle drove it rashly and negligently and caused the accident.

¶38

. IS.The respondent places no evidence The respondent to show that the contents of the charge sheet are incorrect. In a decision between K.Rajani and others, V. M.Satyanarayana Goud and others,* the High Court is pleased to observe that: ■■when the insurance arrnpany came to know that the police investigation is false, they must also challenge the charge sheet in appropriate proceedings. If at all the findings of the police are found to be incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet ate false-. In the case of Bheemla Devi V. Himachal Road Transport Corporation^, the Hon'ble Apex Court observed as follows: ■■It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible by the claimants. The claimants are merely to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond a reasonable doubt could not have been applied".

¶39

Nothing on record suggests that the Investigating Officer filed a charge sheet against the driver of the offending vehicle without conducting a proper investigation. It is also difficult to hold that the Police Officer fabricated a case.

¶40

IT.In .a proceeding under the M.V.Act, where the procedure is a summary procedure, there is no need to go by strict rules of pleadrng or evidence. The document having some probative value,

¶41

' 2015 ACJ 797

¶42

2 2009 ACJ 1725 (SC)

¶43

¶44

MACMA.No.281 OF 2013

¶45

the genuineness of which is not in doubt, can be looked into by the Tribunal for getting preponderance of probable versions. The preponderance of probabilities is the touchstone for concluding rashness and negligence, as well as the accident's mode and manner of happening. As such, it is by now well settled that even FIR or Police Papers, when made part of a claim petition, can be looked into for giving a finding in respect of happening of the accident.

¶46

The Tribunal has accepted the claimant's case regarding the manner of the accident and also accepted the observations made by the Investigating Officer in the charge sheet making the auto driver responsible for the accident. As observed, the charge sheet contents also support s the claimants' case regarding the manner of the accident.

¶47

Upon careful reading of the material on record, this court is of the view that the Tribunal has correctly appreciated the evidence on record and the finding of the Tribunal that the accident occurred due to rash and negligent driving of the offending vehicle holds good.

¶48

It is suggested to PW. 1 in cross-examination that the driver did not have a valid insurance policy. The burden is on the insurance

¶49

, company to establish the said fact. However, the petitioner has placed Ex.AlO DL Extract to prove the same PW.5 - P.Muralidhar, Senior Assistant in RTO office examined. It disproves the suggestion put to PW. 1 in the cross-examination regarding the driving license. To prove that the petitioner was worldng as a cleaner, the petitioner relied on the evidence of l»t respondent, who was examined as RW.2. Admittedly, the 1®‘ respondent is the owner of the offending.

¶50

¶51

MACMA.Wo.281 OF 201 a

¶52

«... „„ lony cleaner i, ■ . “e petitioner was referred to a ^eaZ^' T “ “ - ~nt. To Shows that «-«» mat the petitioner was admitted in fk u • 23.05.2005 with a laceration of 10X5 Cma middle third of the th- h the “7-■ 02.04.2005. The skin grafting was’done oL ^04 2Zan?“ ” 04.05.2005. On 24.09.2005 fracture of the frZ lef 7 ” assessing disabUity at 70»/o; the Tribunal observed that as E th towards the amount of Rs.2.70,000/ards the permanent disabilily of the petitioner. After oaiefullv readmg the material on record, this court views that the TfibunJ ~d the evidence ftom the correct perspective an^:" conclusion regarding the negUgence of the driver of the offendony and the dHving license of the respondent an: “ compensafaon amount. J

¶53

Admittedly the respondent did not pay a premium to cover the nsk of the cleaner and collected no premium under the Ex.Bl policy covering the risk of the cleaner. As seen from Ex.Bl policy, it was being issued for a goods-cariying commercial vehicle B-package policy. In a decision between New India Assurance Company

¶54

¶55

MACMA.Wo.281 OF 2013

¶56

Limited rep. By its Branch Manager Kadapa v. Pujala Chenchu Nagaiah and others^ it was held that “the contention of the appellant, that it is not under obligation to cover the liability arising out of the death or bodily injuries to a cleaner unless an extra premium is paid; cannot be accepted. The vehicle was admittedly a goods carriage, and a cleaner engaged in the such vehicle is covered by clause (i)(c) ofproviso Section 147(1) of the M.V.Act. Therefore, we can take no exception to the order passed by the Commissioner, holding that the 3'-^ respondent and the appellant herein are jointly and severally liable to pay the compensation.

¶57

In. a decision reported between Mandava Lakshminarayana awH another v. K.V.S.S.Mallikarjuna Rao and another* held that “as regards the second aspect, it is a matter of common knowledge that in the heavy transport vehicles, invariably cleaners are appointed. At least in the case of goods vehicles, once goods are loaded, the driver can drive a vehicle without the assistance of anyone. In the case of heavy transport vehicles, the cleaner must take every precaution, including proper upkeep of the vehicle. Forpractical purposes, he acts as a caretaker of the vehicle, both when the vehicle is in motion and parked.

¶58

Mere perusal of section 147 thereof would have made him know that the taking out of a policy to cover the risk of the persons employed on motor vehicles is mandatory, and the minimum coverage should be to the extent it is provided for under the Workmen's Compensation Act (for short 'the W.C.Act')

’ 2011 (2) ALT, 357

“ 2014 ACJ 1739

MACMA Mo 281 OF 201 a

¶63

23.AdmittedIy observations made in the b Xi^aTrer:?.*"' - - --— clause (iOe) of proviso 2, sX mXXr " Tribunal is perfectlyjustified in awarding the conX' T'”"’ to the petitioner/cleaner and can find noth Accordingly, I answemd these points .7 claimant/petitioner. ffavour’™" °f the

¶64